The Left-Libertarian Case for Confiscation

If you were to mention the word “redistribution” to a run-of-the-mill libertarian, it usually brings up red flags, and rightfully so. Government is people spending other people’s money. Since taxes are not the product of government labor and voluntary trade, the livelihoods of those who decide how it gets spent (government officials) aren’t at risk when it’s spent inefficiently or wastefully. Market forces, such as profit and loss, are not present to even a modicum of the same extent as they are with private money. Welfare programs are therefore a misallocation of resources. You’re stripping resources from those that create wealth, thus negatively impacting their ability to further create wealth, while at the same time running straight up against the economic calculation problem.

Ask a left-libertarian about redistribution, they will also be opposed to redistribution via the state but the libertarian left wants to do so without the state concerning wealth that was obtained illegitimately, that is, due in large part to money which was stolen from taxpayers, such as that of some universities, Halliburton, etc. Seems reasonable, right? No state involvement, and property is being returned to it’s rightful owners, including, for example, the descendants of slaves who are considered the legitimate heirs to the wealth of the descendants of slave owners. Usually there are a couple pieces that are commonly invoked by the libertarian left in favor of such a scheme. The first is “Confiscation and the Homestead Principle” by Murray Rothbard (I know, right?) and “Libertarians for Redistribution” by Gary Chartier, and it is difficult to discuss the latter without bringing up the former. Before we continue, I will address the name which is familiar to most, if not all libertarians, and that is Murray Rothbard. Many on the left will claim Rothbard as a leftist, at least during the period the aforementioned article was written. Many anarcho-capitalists claim he wasn’t and just worked with the left on certain ideas for a greater goal (e.g., against the Vietnam War). I personally don’t care as I’m not very interested in personalities, but the ideas they present. I’m interested in discovering and proving whether a given proposition is correct. It doesn’t really matter who has or hasn’t offered such a proposition, or where on the left-right paradigm they were. These concerns are the result of cults of personality, not intelligent and critical thought.

Regarding the first essay, by Rothbard, one might ask the specific areas of disagreement I have. Is it largely a practical objection that allowing expropriation tends to undermine institutions of property rights even where some property has been acquired illegitimately, or is it something else?

In summary, Rothbard argues that the state’s property is illegitimate, as it was gained through theft. The property thus should not remain in the hands of the state. Because the property was typically gained through taxation, theft perpetrated against the public as a whole rather than an individual victim or small group of victims, the question of how to “de-statize” becomes difficult. Rothbard asks,

“How to go about returning all this property to the taxpayers? What proportions should be used in this terrific tangle of robbery and injustice that we have all suffered at the hands of the State?”

He suggests,

“Often, the most practical method of de-statizing is simply to grant the moral right of ownership on the person or group who seizes the property from the State. Of this group, the most morally deserving are the ones who are already using the property but who have no moral complicity in the State’s act of aggression. These people then become the “homesteaders” of the stolen property and hence the rightful owners.”

Rothbard then offers an example by suggesting that state universities could be homesteaded by the students or faculty, and suggests

“[t]he students have a prior claim, for the students have been paying at least some amount to support the university whereas the faculty suffer from the moral taint of living off State funds and thereby becoming to some extent a part of the State apparatus.”

Rothbard is incorrect here. It is not perpetrated against the public as a whole, it’s theft perpetrated against many victims, and not all of them equally. There is no such thing as a “public as a whole” and if there was it could not suffer harm or enjoy the sweetness of justice. Which is why Hoppe’s solution involves the distribution of this property according to tax burden. Even Rothbard hints at a similar solution here by identifying “the taxpayers” as those to whom it should be returned. But then he names a solution that does nothing like this. In fact, in all likelihood, the first-comer to “homestead” a given structure or plot of land or whatever would not have been a net taxpayer at all.

Then he says,

“[t]he most morally deserving are the ones who are already using the property but who have no moral complicity in the State’s act of aggression.”

But he can’t back that up. He doesn’t even try. And then it gets even worse, in the latter quote, how can he say that the students of a state university are any less beneficiaries of it than its faculty? The students pay some money, much of it obtained from State-backed financial aid schemes, and get an education. The faculty do some educational work, and get some money – some of it from the students, some of it from the State. There is absolutely no morally relevant difference.

Even if we replace “public as a whole” for Rothbard’s own words, “All taxpayers, all draftees, all victims of the State have been mulcted” — agreed; victims of the state are, in fact, victims of the state — this is irrelevant. But assuming for a moment that it is, Rothbard doesn’t offer a solution for distinguishing a net victim of the state from a net beneficiary. He doesn’t even offer a redistribution strategy that would tend to favor victims over beneficiaries, or even seem to recognize this is an issue regarding this true privatization of stolen State property.

So, overall, I’m opposed on both economic and ethical grounds. Mostly ethical in this case though, since it’d be a one-time event, not something that will continually screw up the economy. Even if there was no ethical problem with it, it would be bound to at least temporarily have some impact on the economy, so that is a moot point. Rothbard thought (when he wrote this) that benefiting from the state conferred ethical responsibility for its actions. This is ludicrous, long story short. Cashing your social security check or selling pens to the police department doesn’t make you a thief.

Reading this now, you may see that type of argument in most cases. However, operating a firm that exclusively or almost exclusively profits from operating prisons or aiding and abetting war is a different issue. There’s probably some responsibility for the relevant rights violations (which, even then, do not constitute all of the state’s actions). True, if you’re running a prison, you’re responsible for some rights violations, but not the ones those on the libertarian-left who advocate redistribution would tend to point at. I don’t believe “aiding and abetting” is a legitimate ethical concept as it is typically applied to people not directly involved with the action at hand (culpability doesn’t come from non-crimes, even if the actions are associated with crimes), but at any rate it’s not relevant to the question of whether you incur liability or culpability (if they’re not the same thing) by benefitting from the state.

Economically, we don’t want a “one drop rule” (which this is) where anything that was acquired unjustly somewhere along the line ceases to be treated as legitimate property, as this would drastically hamper any sort of trade and effectively outlaw any trade regarding goods once stolen somewhere down the line that cannot be returned to their original owners for some reason. But we also want some mechanism of restitution and transfer of stolen goods back to those they were stolen from. Ethically, if I buy a guitar at a pawn shop and it turns out it was stolen from you, it’s yours. It doesn’t follow that I’m a thief and anyone may legitimately take it from me by force. Now, at first glance a left-libertarian could say the guitar example could be a bit of a strawman since much of the essay Rothbard is talking about property owned by the thief (the state) rather than property that was stolen and then purchased by an innocent. But this is an example of possession conflicting with property rights. Mere possession cannot be relevant to ownership. A “one drop rule” would make it so. For property rights to be secure, possession must be forfeit if it doesn’t match ownership. In those situations the guy who has it isn’t the guy who owns it, and if the owner can’t get it back, property rights are not secure and that causes economic problems. This is similar to what goes with the state. If I get a check from the state, I’m not a thief, because I literally didn’t steal anything. But if I bought a house on some land that was taken from you through eminent domain, well, that’s why title insurance was invented, which would probably take on additional importance at least in the first few post-state years.

Economically, it would be very disruptive. Temporarily, but very. As soon as it began happening, lots of resources would be dedicated to preventing it on one side, and to overcoming those efforts on the other side, instead of doing anything productive. The productive resources would end up in the hands of people with the skills and motivations to forcibly take them, not those who know how or care to operate a business.

Take a business like Halliburton. It’s obviously a prime candidate for seizure on these grounds. What happens if young-Rothbard gets his way, and what happens if he doesn’t? If it were seized, I think it would not bode well for, as an example, its energy and construction divisions, which are massively productive, and the fate of its state-oriented activities is more or less built into the scenario. It would probably fail, its assets going to the highest bidder, which I certainly find preferable to seeing them go to the guy with the biggest stick. Those who seized it will have benefitted from actual theft, not this theft-by-proxy invented for those who benefitted unintentionally from the crimes of others.

If it’s left to operate, as I said its state-oriented activities are done for, and it will have to focus on serving markets. If it turns out it’s been bankrolling inefficiencies in those activities all along with the returns from its less innocent sales, it will either figure out how to turn itself into a market-oriented firm, or it will fail, and I’m fine either way. You might say it could still sell its services to other states, but I see no reason to suspect that those who seized it wouldn’t succumb to the same temptation. And I hesitate to even put it that way, since I myself would at worst have only mixed feelings about selling goods or services to a state (If, for instance, the only way to build roads in some area is with the state’s involvement, is it better for that area to go without roads?).

Contra Chartier

Chartier starts off his essay with summarizing “Statist Redistribution”: we have involuntary giving, the redistribution of one’s property against their will, meaning by force. Two kinds of force are implied: the physical ability of all comers to seize someone’s property owing to strength of numbers and/or their presumed absence, and a legal system capable of using force when necessary and designed to resolve conflicts in favor of redistribution such as the State.

“Voluntary redistribution” I couldn’t possibly object to. That’s just charity, generosity which the essay’s section “Solidaristic Redistribution” takes a rather long time to say. While I’m skeptical of institutional giving in general, I’m certainly on board with voluntary giving. I almost have a hard time believing that any libertarian would go on from there to discuss involuntary giving (without calling it that, of course).

Under “Transactional Redistribution”, Chartier states, it is merely “a description of what happens in a genuinely freed market”, which, as a libertarian, I totally am for.

Finally, we have the section “Rectificational Redistribution”, where Chartier begins to stray. Chartier says, “People deserve compensation for the losses they have suffered at the hands of those who prefer the political to the economic means of acquiring wealth.” I would like to hear examples of each group. Who prefers the political means of acquiring wealth, and who suffers at their hands and deserves compensation at the former’s expense? I can only assume Chartier means if I use the state, say, to take your land via eminent domain and transfer it to me, I’ve opted for the political means of acquiring wealth at your expense. But how does one use the state? If I could make the state my puppet, the world would be a very different place. One of the main problems with every statist philosophy is precisely that once an organization has this power you have no way to control what it does with it. Benefiting from the political means is not the same thing as using it. If this is an ethical claim, let’s hear how somebody who commits no aggression is somehow guilty of it. What if I lobby the state to benefit at your expense, and I fail? What if I lobby the state to have your property assigned to a third party, because I believe society will benefit? Regarding who committed the aggression, always in the context of the state, the enforcers are the aggressors, if anyone.

Then there’s the rest. Chartier invokes Rothbard’s opinion that slaves should be legally entitled to land they worked. I think most libertarians of all stripes would agree with this, and I think it applies equally well to heirs of slaves. But this is because the slave and his heirs have a legitimate claim to the land unmatched by its nominal owners, not merely because the current title holder necessarily benefitted from an injustice.

A good example would be Smith, a guy who bought a farm from its previous owner, versus Jones, a descendant of a slave who once worked a plantation that later became the farm that came to Smith via a series of voluntary transactions dating back 150 years. Smith has not benefitted from any aggression — he incurred the same expense, or thereabouts, as he would have buying a farm without this sordid history, of which he may not even be aware. But Jones, according to most libertarians, including Leftists and some Rothbardians, somehow has a superior claim, such that a market legal system is expected to assign him the title at Smith’s unfortunate expense (but this is why title insurance was invented).

Here we have an identifiable victim and no living identifiable beneficiary, and justice demands not redistribution, which implies a quantitative goal, but reassignment based on an already-established legitimate claim to ownership. A left-libertarian would reach the same conclusion here but on totally different grounds. He would say that the current title is essentially state-assigned, and assume on those grounds alone that Smith is in fact a beneficiary of state aggression, and reassign the title to Jones whether or not he can produce an actual claim, simply because he’s a first-comer and the nominal owner’s tainted claim essentially renders it amenable to homesteading by anyone poor enough to satisfy leftist sensibilities (another example of what I see as the Left’s preference for harming wealthy people over competing concerns: what’s important is that Smith has something we can plausibly take from him, not that Jones was unjustly denied what was rightly his).

It’s also curious that Chartier assumes a legal system can exist which is capable of enforcing these reassignments on leftist terms, but that no legal system would be available to property owners “to protect their wealth from squatters.” The claim is that maintaining absentee claims at the putative owner’s expense is costly; and, when the costs are internalized by the putative owners, they may be less likely to maintain some absentee claims. In contrast though, why? Are all the workers communists bent on seizing and/or destroying the property, such that they have to be outnumbered by round-the-clock armed guards? And, under what sort of legal system? Why should it be much more expensive to keep my factory safe while I’m away than my home while I’m on vacation? Anarchists generally agree that costs of pretty much everything would fall and quality would rise in a free market. But when that expectation is poorly aligned with leftist ideology, as in the case of roads and property protection, suddenly those things become untenably expensive (Anna Mortgenstern makes the same mistake in her article “Why Anarcho-“Capitalism” is Impossible”). It’s based on the assertion that absent the state, you can’t own anything you can’t defend yourself, because if you hire somebody to do it they’ll just take it themselves and nobody can do anything about it. Which is preposterous, but let’s take a brief look anyway.

First, if this is true then nobody will ever own anything. Poor people are robbed all the time — probably more often than rich people, and arguably because poor people have less access to the state and the protection it provides. But without the state, poor people would be more vulnerable too, not just rich people, if the basic leftist assumptions here are correct, which they aren’t. Unless you can defeat all comers, regardless of their numbers or arms, in mortal combat, you can’t own anything for more than a few hours, or rather you dare not even try. So, numerous left-libertarians want it to be true that only the state can protect property, but then they only want it to be true for the people they hate — rich people. They want this supposed juggernaut of economic inevitability to leave poor people alone, and they assume it will without analysis. If any of this were true, even I would have a hard time being an anarchist. But it’s not. It’s completely arbitrary and seems related to the equally arbitrary distinction some left-libertarians make between personal and private property, where the one is a necessity and a right for all while the other is a mere frivolity of the rich that must be held at the expense of the poor.

Even now, nobody with any amount of wealth to protect relies on the state for that protection, because they suck at it and have very little incentive to try very hard. Not even if you’re rich. I’m not going to lay out polycentric legal theory from scratch here, but it’s very curious to me how the Left think demonopolizing some things will make them more abundant, less expensive and higher quality, but if it serves them ideologically they’re happy to assume demonopolizing other things will make that good vanish permanently from the market or make it impossibly expensive. Roads are another example of this. Since they hate Big Business, they have discovered that roads are economically special, in that markets would make them so expensive and therefore hard to build to the degree they have been such that a company like Walmart, which relies on them, couldn’t possibly exist.

Why I think Chartier and Rothbard are wrong here from an economic perspective has been laid out. I would say the negative economic consequences would be much less widespread in Rothbard’s scenario. Rothbard’s victims are limited to beneficiaries of the state, a relatively small subset of rich people. Most others would be able to keep it by his (still broken) standards in this case. As for Chartier, it is anybody who has more than he can personally defend against looters. Why I’m glad they are wrong from an ethical perspective, is another that I’ve at least partially covered above. I am a great admirer of Rothbard and love much of his work, but here I would argue that he aligned too much with the left in this case.

The only available reasons left to even consider these positions by Rothbard and Chartier conflicts with economics and ethics, which left-libertarians have no excuse for, or the aforementioned hatred of those with more agency which seems to come off as the actual driving force of their philosophy. I would argue Hoppe’s* approach is much better. If the current distribution of property is unjust, as it certainly is, the solution is to have each unit’s rightful owner make his claim. If I, as the heir of a victim of eminent domain a hundred years ago, can show that a plot of land is rightfully mine, let me do so, and that’s why title insurance was invented. That is, we have a dispute and a good way to resolve the dispute.

*With the caveat that I’m not quite satisfied with it either, Hoppe’s is definitely better as opposed to Rothbard’s Confiscation and the Homestead Principle.

Money quote:

“The same essentially applies to the privatization of all other public goods, such as schools, hospitals, etc. As a result, all tax payments for the upkeep and operation of such goods stop. The funding and development of schools and hospitals, etc., is henceforth solely up to their new, private owners. Likewise, the new owners of such formerly “public” goods are those residents who actually financed them. They, in accordance with their amount of taxes paid, should be awarded saleable property shares in the schools, hospitals, etc. Other than in the case of streets, however, the new owners of schools and hospitals are unrestricted by any easements or rights-of-way in the future uses of their property. Schools and hospitals, unlike streets, were not first common goods before being turned into “public” goods. Schools and hospitals simply did not exist at all as goods before, i.e., until they had been first produced; and hence no one (except the producers) can have acquired a prior easement or right-of-way concerning their use. Accordingly, the new private owners of schools, hospitals, etc., are at liberty to set the entrance requirements for their properties and determine if they want to continue operating these properties as schools and hospitals or prefer to employ them for a different purpose.”